After careful consideration of the Administrative Law Judge's ("ALJ") Adjudication, the memoranda of the parties, and the entire record, the Court finds the record offers almost no support for any of the ALJ's important findings or his conclusions, and, conversely, offers compelling support for plaintiff's disability based upon a combination of severe impairments, chief of which are an uncontrolled seizure disorder, a long-standing condition of bipolar disorder with panic attacks, and a long-standing peptic ulcer condition. Accordingly, summary judgment will be entered in plaintiff's favor and an award of SSI benefits will be ordered.

2. The medical evidence establishes that the claimant has a seizure disorder, disc bulge, right shoulder impairment, headaches, depression and an ulcer, impairments which are severe but do not meet or equal the criteria of any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4.

3. The claimant's statements concerning his impairments and their impact on his ability to work are not entirely credible in light of discrepancies between the claimant's assertions and information contained in the documentary reports and the findings made on examination.

4. The claimant lacks the residual functional capacity to climb or balance and can only occasionally crouch, stoop, kneel, or crawl, cannot interact appropriately with co-workers or supervisors, concentrate on or attend to work tasks on a sustained basis, tolerate more than minimal levels of stress and cannot work around environmental hazards.

5. The claimant is unable to perform his past relevant work as laborer/grinder and carpenter.

6. The claimant's capacity for the full range of light work is diminished by the above set forth limitations.

7. The claimant is 44 years old, a "younger individual age 18 - 44."

8. The claimant has a high school education.

9. The claimant has skilled work experience.

10. Based on an exertional capacity for light work, and the claimant's age, education background, and work experience, Section 416.969 and Rules 202.21 and 202.22, Table No. 2, Appendix 2, Subpart P, Regulations No. 4, would direct a conclusion of "not disabled." The same result would be reached without regard to transferability of work skills.

11. Although the claimant's additional nonexertional limitations do not allow him to perform the full range of light work, using the above-cited Rule as a framework for decision-making, there are a significant number of jobs in the national economy which he could perform. Examples of such jobs are: work as an assembly worker, dispatcher and packager. Tens of thousands of jobs in each of these categories exist in the national economy.

12. The claimant has not been under a disability, as defined in the Social Security Act, at any time through the date of this decision.

Adjudication, R. 23-24.

Accordingly, the ALJ concluded plaintiff was not eligible for SSI benefits. In his discussion, the ALJ discounted plaintiff's credibility as to the frequency and severity of his seizures and his psychological impairments based in part on perceived "discrepancies" inherent in his testimony and as compared to that of his wife, and purported to have considered all of the medical evidence and listed some reasons for crediting certain medical evidence over other. In reviewing the medical records, however, it is apparent the ALJ failed to give adequate consideration to the treating physician's diagnosis and opinions and chose to selectively credit certain portions of certain physician's opinions and records without principled reason for ignoring other portions which support plaintiff's disability. It is also apparent that the ALJ's hypothetical questions and the answers thereto not only fail to support the ALJ's conclusions and findings, but actually support a finding of disability, and that the perceived "discrepancies" in plaintiff's testimony were highly exaggerated and evaporate when placed in obvious context.

The Supreme Court has defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971). It consists of more than a scintilla of evidence, but less than a preponderance. ventura, 55 F.3d at 901 (quoting Richardson, 402 U.S. at 401); Stunkard v. Secretary of HHS, 841 F.2d 57, 59 (3d Cir. 1988). The substantial evidence standard allows a court to review a decision of an ALJ, yet avoid interference with the administrative responsibilities of the Commissioner. See Stewart v. Secretary of HEW, 714 F.2d 287, 290 (3d Cir.1983).

In Claussen v. Chater, 950 F. Supp. 1287, 1292 (D.N.J. 1996), the district court set forth the following principles of review of the Commissioner's/ALJ's adjudication:

Reasonable minds can reach different conclusions following review of the evidentiary record upon which the Commissioner's decision is based. Nevertheless, in such cases, a district court's function is to determine whether the record, as a whole, contains substantial evidence to support the Commissioner's findings. See Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994) (citing Richardson, 402 U.S. at 401, 91 S. Ct. at 1427). A court may not displace an administrative body's "'choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.'" (citations omitted)

Nonetheless, an ALJ is expected to do more than simply state factual conclusions. see Stewart, 714 F.2d at 290. Rather, the ALJ must make specific findings of fact to support his or her ultimate findings. Id. The ALJ must consider all medical evidence in the record and provide adequate explanations for disregarding or rejecting evidence, especially when testimony of the claimant's treating physician is rejected. See Wier on Behalf v. Heckler, 734 F.2d 955, 961 (3d Cir.1984); Cotter v. Harris, 642 F.2d 700, 705 (3d Cir.1981). He or she must also give serious consideration to the claimant's subjective complaints of pain, even when those assertions are not confirmed fully by objective medical evidence. See Mason v. Shalala, 994 F.2d 1058, 1067-68 (3d Cir. 1993); Welch v. Heckler, 808 F.2d 264, 270 (3d Cir. 1986).

An ALJ, however, is not obliged to accept without question the credibility of such subjective evidence. See Marcus v. Califano, 615 F.2d 23, 27 (2nd Cir. 1979). An ALJ has discretion "'to evaluate the credibility of a claimant and to arrive at an independent judgment in light of medical findings and other evidence, regarding the true extent of the pain alleged by the claimant.'" LaCorte v. Bowen, 678 F. Supp. 80, 83 (D.N.J. 1988) (quoting Brown v. Schweiker, 562 F. Supp. 284, 287 (E.D.Pa. 1983)). If an ALJ concludes testimony is not credible, however, the basis for such a conclusion must be indicated in his or her decision. See Cotter, 642 F.2d at 705.

(emphasis added).

When resolving the issue of whether a claimant is disabled and whether the When resolving the issue of whether a claimant is disabled and whether the claimant is entitled to disability insurance or SSI benefits, the Commissioner utilizes a five-step sequential evaluation. 20 C.F.R. §§ 404.1520 and 416.920 (1995). See Sullivan, 493 U.S. at 525. In summary, this process requires the Commissioner and the ALJ to consider, in sequence, whether a claimant (1) is working (currently engaged in substantial gainful employment); (2) has a medically demonstrable severe impairment; (3) has an impairment that meets or equals the requirements of a "listed" impairment, i.e., one which the Commissioner has listed as a substantial-enough impairment to conclusively presume disability. "For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Sullivan v. Zebley, 493 U.S. at 530 (emphasis added); (4) if step 3 is negative, i.e., the claimant does not have a listed impairment or its equivalent, whether the claimant can return to his or her past relevant work; and (5) if not, whether he or she can perform other work available in the national economy. id.; Welch v. Heckler, 808 F.2d 264, 268-69 (3d Cir. 1986).
*fn4"

To qualify for disability benefits under the Act, a claimant must demonstrate that there is some "medically determinable basis for an impairment that prevents him or her from engaging in any substantial gainful activity for a statutory twelve-month period." Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987); 42 U.S.C. § 423 (d)(1) (1982). This may be done in two ways:

(1) Steps 1-3 -- by introducing medical evidence that the claimant is disabled per se because disabled per se because he or she suffers from one or more of a number of serious impairments delineated in 20 C.F.R. Regulations No. 4, Subpt. P, Appendix 1. See Heckler v. Campbell, 461 U.S. 458, 76 L. Ed. 2d 66, 103 S. Ct. 1952 (1983); Stunkard, 841 F.2d at 59; Kangas, 823 F.2d 775 at 777; or,

(2) Steps 1-4 -- in the event that claimant suffers from a less severe impairment, by demonstrating that he or she is nevertheless unable to engage in "any other kind of substantial gainful work which exists in the national economy . . . ." Campbell, 461 U.S. at 461 (citing 42 U.S.C. § 423 (d)(2)(A)).

The ALJ's determination, accepted by the Commissioner, is fraught with instances where medical factoids, selective excerpts and unwarranted inferences from medical reports and documents are taken out of context, other medical evidence is ignored for no apparent reason, credibility determinations are rendered against the plaintiff based upon questionable inferences and immaterial or easily explainable "discrepancies," and patently flawed hypothetical questions to the vocational expert are used to deny disability benefits. The following are some of the more glaring instances of unsupported findings and flawed reasoning which will suffice to demonstrate the ALJ's determination is without substantial evidence.

A. Convulsive disorders. In convulsive disorders, regardless of etiology degree of impairment will be determined according to type, frequency, duration, and sequelae of seizures. At least one detailed description of a typical seizure is required. Such description includes the presence or absence of aura, tongue bites, sphincter control, injuries associated with the attack, and postictal phenomena. The reporting physician should indicate the extent to which description of seizures reflects his own observations and the source of ancillary information. Testimony of persons other than the claimant is essential for description of type and frequency of seizures if professional observation is not available.

Documentation of epilepsy should include at least one electroencephalogram (EEG).

Under 11.02 and 11.03, the criteria can be applied only if the impairment persists despite the fact that the individual is following prescribed anticonvulsive treatment. Adherence to prescribed anticonvulsive therapy can ordinarily be determined from objective clinical findings in the report of the physician currently providing treatment for epilepsy. . . . Where documentation shows that use of alcohol or drugs affects adherence to prescribed therapy or may play a part in the precipitation of seizures, this must also be considered in the overall assessment of impairment level.

11.03 Epilepsy--Minor motor seizures (petit mal, psychomotor, or focal), documented by EEG and by detailed description of a typical seizure pattern, including all associated phenomena; occurring more frequently than once weekly in spite of at least 3 months of prescribed treatment. With alteration of awareness or loss of consciousness and transient postictal manifestations of unconventional behavior or significant interference with activity during the day.

Every time plaintiff went to a consulting physician or to an agency "evaluator," the evaluator confirmed Dr. Martin's diagnosis that plaintiff was suffering from seizures, and he consistently told each physician he was experiencing two or three seizures a week. E.g. Dr. Hahn, Exhibit 20, R. 288; Dr. Zubchevich, Exhibit 28, R. 320. Although the ALJ mentioned all of the various physicians who had treated or evaluated plaintiff, he ignored the virtually unanimous opinions of the medical professionals that the patient suffered from recurring petit mal and occasional grand mal seizures that were uncontrolled by medication.

An ALJ is not permitted to make speculative inferences from medical reports, Smith v. Califano, 637 F.2d 968 at 972, yet this is exactly what happened here. The ALJ disregarded his obligation to consider all medical evidence in the record and provide adequate explanations for disregarding or rejecting evidence, especially when testimony of the claimant's treating physician is rejected. Wier on Behalf of Wier v. Heckler, 734 F.2d 955, 961 (3d Cir.1984); Cotter v. Harris, 642 F.2d 700, 705 (3d Cir.1981). Furthermore, a "single piece of evidence will not satisfy the substantiality test if the Secretary ignores, or fails to resolve, a conflict created by countervailing evidence." Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993) (emphasis added), quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983). The ALJ here has focused myopically on one or two pieces of "information," not really amounting to "evidence," to support his conclusion that plaintiff's seizure disorder is "questionable."

As previously observed, "testimony of subjective pain and inability to perform even light work in entitled to great weight, particularly when . . . it is supported by competent medical evidence." Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir. 1979) Where a claimant's testimony as to pain is reasonably supported by medical evidence, neither the Commissioner nor the ALJ may discount a claimant's history of symptoms without contrary medical evidence. Williams v. Sullivan, 970 F.2d 1178, 1184-85 (3d Cir. 1992), cert. denied 507 U.S. 924, 122 L. Ed. 2d 685, 113 S. Ct. 1294 (1993); Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985); Chrupcala v. Heckler, 829 F.2d 1269, 1275-76 (3d Cir. 1987). Similarly with complaints of seizures, blackouts, headaches, fainting spells, etc., and other related debilitating conditions, a patient's report is an essential diagnostic tool which, if supported by medical evidence consistent with such symptoms, may not be discounted in the absence of contradictory medical evidence. See Green v. Schweiker, 749 F.2d 1066, 1070-71 (3d Cir. 1984) (ALJ dismissed claimant's testimony about her history of frequent dizziness and blackout spells on ground that they were not "specifically reflected in the medical records. If complaints of dizziness are similar to complaints of pain, as they appear to be, dismissal of subjective symptomology on the basis of an absence of direct medical evidence is at odds with the Third Circuit standard, the new statute, and the Secretary's own regulations. [citations omitted] . . . . Thus while there must be objective medical evidence of some condition that could reasonably produce pain, there need not be objective evidence of the pain itself. Here, Green's objectively verified conditions, which included obesity, hypertension, angina, diabetes, and chest pains, could reasonably be said to produce dizziness and blackouts."); Flanery v. Chater, 112 F.3d at 350 (subjective testimony about history of frequency and severity of minor motor seizures was supported by other lay witnesses and doctor who had witnessed seizure, plus "abnormal" EEG test results, and should not have been discounted in the absence of medical evidence contradicting claimant's seizures).

Here, the ALJ gave several dubious reasons for discrediting plaintiff's testimony about the frequency and severity of his seizures and about his mental health based upon his perceptions of "discrepancies" inherent in plaintiff's testimony and between plaintiff's testimony and his wife's, discrepancies that are more imagined than real.

A: No, he had a permit, and then they found out that he wasn't allowed to have them. They told him -- because he was going to get his license, and then they said you're not allowed to have license while you're having seizures, so we decided our son ought to get his, so at least somebody in our family had them.

R. 85 (emphasis added). Although plaintiff said "license" when it actually was a "license permit" that was taken away according to his wife, only an adjudicator whose mind was closed on this issue could conclude that Ms. Akers contradicted her husband. In fact her entire statement strongly supported plaintiff's testimony! Any "discrepancy" here is de minimis.

(3) The "shifting" last date of work. The ALJ seemed to find something nefarious in plaintiff's testimony about his last day at work, stating "the claimant kept changing the date he allegedly stopped working during the hearing when the undersigned pointed out inconsistencies in Exhibits regarding his work history." R. 17, 20. It is apparent that plaintiff, who suffers from bipolar disorder and other diagnosed mental impairments, was less than crystal clear and somewhat confused about his last day of work, but he explained his "inconsistent" answers to the "last day of work" questions because he had attempted to return to work on several occasions but was not able to. Although he initially was talking about his last day of regular, sustained work, later he was referring to his aborted attempts to return to work for a day or less. R. 69-70. Ms. Akers corroborated her husband's explanation and his attempts to return to work on several occasions. R. 89-90.

4. ALJ's findings of plaintiff's so-called "wide variety of activities." The ALJ found plaintiff was "able to engage in a wide variety of activities including caring for his personal needs without assistance, watching television, playing with the children, helping his son build models, and visiting families frequently. (Exhibit 6)." Contrary to the ALJ's finding, the entire record, including plaintiff's and his wife's testimony, as well as medical histories and Dr. Kennedy's report, reveals a rather uneventful lifestyle, and a very narrow range of activities, including loss of interest in formerly satisfying activities such as watching the Steelers, hunting, and riding in a motorcycle club, not to mention difficulty sleeping, loss of appetite, and inability to drive. This Court does not doubt that what the ALJ characterizes as a "wide variety of activities" would be characterized by most people as relatively limited. As the Court of Appeals observed in Smith v. Califano, 637 F.2d 968, 971-72 (3d Cir. 1981):

The vocational expert, Noel Plummer, Ph.D., had examined the plaintiff's medical records and was present throughout the hearing, and he responded to four hypothetical questions posed by the ALJ. The first asked the vocational expert to assume Dr. Kennedy's assessment at Exhibit 15 accurately set forth plaintiff's limitations and restrictions, and in that event, would he be able to perform his past work or any other work. R. 91-92. The vocational expert unequivocally answered "he would not be able to perform any other job on a sustained, repetitive basis based upon the limitations of that assumption." R. 92. Curiously, the ALJ found that Dr. Kennedy's evaluation was worthy of belief, R. 21, although ultimately he did not make a finding consistent with that belief.

The second hypothetical asked the vocational expert to assume the limitations set forth in Dr. Hahn's report at Exhibit 20, which confirmed plaintiff's seizure disorder, but the ALJ added the extra assumptions that his seizures would last one to four minutes (as the ALJ interpreted Ms. Akers testimony), and that there would be "no recovery period" from the seizures. R. 92-93. As we have seen, Ms. Akers did not say his seizures lasted only one to four minutes, but that she would be able to get him up from the floor in that space of time after he had a seizure. More importantly, even though the vocational expert recognized the importance of knowing the recovery period after a seizure, the ALJ asked the vocational expert to assume a fact that is nowhere to be found on the record, namely that there is "no recovery period." It is a blatant mischaracterization of Ms. Akers testimony, at best, to assume no recovery period for her husband's seizures, and there certainly is nothing else on the record to even remotely support such an assumption. To the contrary, both the medical evidence and the testimony of plaintiff and his wife demonstrate there is a substantial recovery period accompanied by severe migraine headaches, and other "transient postictal manifestations of unconventional behavior or significant interference with activity during the day." 20 C.F.R. Part 404, Subpt. P, § 11.03

Third, the ALJ "added" Dr. Mehta's assessment in Exhibit 16, including that plaintiff is "totally dysfunctional." The ALJ infers that "he talks about stress here." R. 93-94. Heaping his own assumption upon the ALJ's, the vocational expert opines that "well, of course, I must preface it with that stress is often a self-imposed kind of thing . . . . The primary factor in Exhibit 16 appears to be his assessment of the motivation of the claimant rather than any definitive limitation." R. 94. Based upon this double assumption, which negated Dr. Hahn's actual medical opinion that plaintiff is totally dysfunctional, the vocational expert opined that there were low to moderate stress jobs that plaintiff was capable of performing, and he listed some. R. 94.

Finally, asked to assume two seizures per week, with incapacitation for two hours thereafter, the vocational expert stated there would be no jobs that plaintiff could perform on any sustained basis. R. 95.

The ALJ must analyze all of the evidence in the record and provide an adequate explanation for disregarding evidence, Brewster v. Heckler, 786 F.2d 581, 584 (3d Cir. 1986); Cotter v. Harris, 642 F.2d 700 (3d Cir. 1981); Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979), yet in his adjudication, the ALJ provided no explanation for discounting the "Dr. Kennedy hypothetical" which included Claimant's substantial nonexertional limitations as set forth in the very medical report the ALJ himself had credited. The vocational expert's response to the "Dr. Kennedy" question demonstrates that plaintiff was disabled as a result of a listed impairment, his bipolar condition and other mental impairments, as of December 4, 1992.

VI. CONCLUSION

The Adjudication of the ALJ, as adopted by the Commissioner, is completely infested with misjudgment, mischaracterization of testimony, disregard of competent and largely uncontradicted medical evidence, and wholly lacks substantial evidence to support the denial of SSI benefits. Accordingly, the decision of the ALJ, as affirmed by the Commissioner, must be reversed, and this case remanded for an award and calculation of benefits.

ORDER OF COURT

AND NOW, this 25th day of February, 1998, for the reasons set forth in the accompanying memorandum opinion, it is HEREBY ORDERED AS FOLLOWS:

4. This case is remanded to the Commissioner for calculation of supplemental security income benefits from December 4, 1992, forthwith.

DONALD J. LEE

United States District Judge

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